Judicial deference and the margin of appreciation
Produced in partnership with Alexander Campbell of Field Court Chambers and Eric Metcalfe of Monckton Chambers
Judicial deference and the margin of appreciation

The following Public Law practice note produced in partnership with Alexander Campbell of Field Court Chambers and Eric Metcalfe of Monckton Chambers provides comprehensive and up to date legal information covering:

  • Judicial deference and the margin of appreciation
  • Judicial deference
  • Margin of appreciation
  • The margin of appreciation in EU law

Judicial deference is also known as the principle that 'respect is a central concept in judicial review’. It is not limited to cases involving human rights. In cases involving human rights, however, it concerns the weight that the courts will give to the views of Parliament and/or the Executive when assessing whether a particular decision or piece of legislation constitutes a proportionate interference with one or more rights under the European Convention on Human Rights.

Though similar to deference in several respects, the margin of appreciation is a distinct doctrine that is employed by the European Court of Human Rights (ECtHR). It expresses the idea that member states are in principle better placed to evaluate local needs and conditions than an international court and should therefore be accorded a certain amount of leeway as to the manner in which they implement human rights standards.

Judicial deference

In some circumstances it will be appropriate for the courts to recognise that there is an area of judgement within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention (see: Director of Public Prosecutions Ex Parte Kebeline).

Note, however, that the term 'deference' has overtones of servility that may be inappropriate to describe the role of the courts. In a society

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